New Entrant Carriers' ADA Compliance May Be Checked

Dec 17, 2008

A final rule from the Federal Motor Carrier Safety Administration has raised the stakes for motor carriers that must go through the New Entrant Safety Assurance Program, which means U.S. carriers seeking approval for interstate operation and Canadian carriers seeking to operate in the United States. (Mexico-domiciled carriers are allowed access to the U.S. market via a different – and still controversial -- program.)

There are 16 regulations that FMCSA defines as essential elements of basic safety management controls necessary to operate in interstate commerce; a carrier's failure to comply with any of the 16 regulations is an automatic failure of the safety audit. But with this final rule, if certain violations are discovered during a roadside inspection, the new entrant will be subject to expedited actions to correct these deficiencies; FMCSA also will now check compliance with the Americans with Disabilities Act and certain household goods-related requirements in the new entrant safety audit, if they apply to the new entrant's operation.

To maintain new entrant registration, a carrier must demonstrate compliance with applicable Federal Motor Carrier Safety Regulations and Hazardous Materials Regulations. Within the first 18 months of a new entrant's operation, FMCSA conducts the safety audit of the carrier's operations to educate the carrier on compliance with those regulations and to determine whether the carrier is exercising basic safety management controls as defined in 49 CFR 385.3. If the new entrant passes the safety audit, it retains the new entrant registration and remains subject to the new entrant safety monitoring system for the rest of the 18-month period; FMCSA grants permanent registration only if the new entrant successfully completes the monitoring period. If the new entrant failed the safety audit, the entrant must provide FMCSA evidence of corrective action within a specified time period. Carriers operating vehicles designed or used to transport 16 or more passengers and hazardous materials carriers must submit evidence within 45 days; passenger carriers operating vehicles designed or used to transport between 9 and 15 passengers and non-hazardous materials property carriers must do so within 60 days.

Violations that result in automatic failure of the safety audit including failing to implement an alcohol or controlled substances testing program; using a driver who is known to have an alcohol content of 0.04 or more to perform a safety-sensitive function; or using a driver who refused to take an alcohol or controlled substances test or who is known to have testing positive for a controlled substance. To others are knowingly using a driver who does not possess a valid commercial driver's license and using a vehicle that is not periodically inspected.

In response to comments stating that violations based on a single driver or a single vehicle unfairly disadvantage larger carriers, the agency has adjusted its approach for the automatic failures. Now, two of the 16 regulatory violations will include thresholds. If a driver did not prepare a record of duty status in more than half of the trips examined during the safety audit or the carrier failed to perform periodic inspections on more than half of the fleet vehicles examined during the audit, the entrant fails. Violation rates of 50 percent or less will be taken into consideration in the overall assessment of the carrier's compliance with applicable regulations, "and the Agency may use other means to improve the carrier's performance, including assessment of civil penalties following a compliance review of the new entrant," the rule states.

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